Is There Any Way To Be A Music Blogger Without Risking Takedown?

from the not-really dept

Last week, we wrote twice about the Google music blog mess, which caused many people to falsely attack Google for its policies in dealing with takedown notices. While it is true that Google could do a better job in communicating and potentially in fighting for its users, the real problems are that the DMCA makes this very difficult for Google (and potentially very risky) and the big recording industry lawyers seem totally disconnected from what the same label marketing folks are doing.

Now, the EFF has weighed in to look at whether or not it's even possible for any music blogger to avoid this sort of scenario and has concluded that the answer is basically no, it's not. Many music bloggers jumped ship to other hosting firms, but as we noted in our original discussion on the topic, those other hosts will face the same exact issue when they start receiving takedown notices, and may be even less receptive to sticking up for music bloggers or less helpful in explaining to them how to file counternotices.

The EFF does shed some light on one interesting aspect of all of this. Many of the takedowns were filed by the IFPI, who seems to claim that the takedown notices are not technically DMCA takedowns since the IFPI is not a US-based organization, and thus, it doesn't need to follow the DMCA's rules (such as specifically designating which files are infringing):

Ordinarily, the party issueing the takedown notice would be required by US copyright law to specify which content is being accused. But, as an international organization headquartered in London, IFPI is arguing that it doesn't even need to play by the USA's rules. "We neither admit nor accept," they write, "...that Google is entitled to be served a notice in compliance with the DMCA." Translation: IFPI is essentially threatening to sue Google under some unspecified foreign law -- presumably one which lacks even the modest safe-harbor provisions available in the USA. It's no wonder Google felt the need to take drastic action to avoid liability, even at the expense of the resulting headaches and bad press.

While, yes, I can understand why Google might want to avoid yet another lawsuit in some foreign country (it's already dealing with a bunch of those), you would think that the company might be better off responding with a simple: "we are based in the US, the content you are complaining about is hosted on US servers, we abide by US law, and unless you follow the DMCA's rules for an official takedown notice, we will not be taking down the content."

Either way, the bigger (and more important) point is that pretty much anyone who blogs about music may face this sort of situation at some point or another -- even if you have explicit permission to post those tracks. The process that the IFPI, RIAA and others go through to demand takedowns is so automated and so disconnected from any marketing people (or common sense around marketing) that lots of people will receive them even though they should not. At some point, perhaps, the labels will recognize this is a mess of their own making, but it seems like we're still a long way from that day.

There is no way to get around DMCA takedown notices? Sure, host your blog in a country with more reasonable (or more reasonably enforced) copyright laws. The world does not end at the US border and the internet has the great capability to pick the country with the most liberal laws without anyone noticing.

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Why must bloggers post actual music files?

Blog about the music all you want, but you bring troubles onto yourself when you post actual files. Just have everyone start posting links to a bit torrent site that has the entire album and stick it to the labels.

How bad it can get

I have a blog that only contains music that I wrote, recorded and distribute myself (not under "poperatzo" of course). I'm not trying to pimp my work, so I won't include a link.

Believe it or not, since I started this blog, I've received TWO threatening letters from music industry lawyers, one telling me to take down MY OWN music and another saying that I was running an internet radio station and owed license fees.

One of the other musicians I play with is a lawyer and he was able to get it straightened out pretty easily, but this is the kind of extortion that the music industry is now engaged in.

This is simple. Any music blogger should simply obtain licenses from ASCAP, SoundExchange, and BMI and he's good to go.

I'm sure the blogger will claim that he should not have to purchase such licenses because he's promoting the music and giving the labels and the artists free exposure, but that's not his choice to make. No one has any right to promote a third party's copyright.

"...and the big recording industry lawyers seem totally disconnected from what the same label marketing folks are doing."

I read no further than this and must comment. The choice of the word "seem" is totally inappropriate. More accurately stated, the word should be "are".

In many large corporations the law departments operate as an autonomous unit that waits for "problems" to come to it instead of the persons in such departments getting their a**es out of their offices, talking with people (at all levels) in all of the corporation's functional areas, and (dare I say it?) actually listening and taking the time to learn how the various functional areas operate, and establish close, real time lines of communication all areas at all levels.

There appear to be two types of lawyers within corporate law departments, those who believe their job is to "prevent liability" at all costs (including asserting rights in cases where molehills are thus turned into mountains), and those who believe their job is to help the corporation pursue its business goals in as easy and expeditious a manner as possible. Any rookie can do the first job. It takes someone who understands the business from top to bottom and back again to do the second.

Unfortunately, it seems that rookies predominate by a very large majority.

Re: I have an idea

Of course you can blog about music without risking takedown. Gracious. You can even link to the appropriate page on Amazon. This is not rocket science. You just have to not link to MP3s. Otherwise, blog away.

The conclusion of "basically no" sounds a lot like "I can't do it my way, so it can't be done at all. The bad man took my ball!"

Re: Why must bloggers post actual music files?

Just have everyone start posting links to a bit torrent site that has the entire album and stick it to the labels.

So, if BT sites are getting into trouble even though they're just posting links to files, not hosting the files themselves, what makes you think that there'd be any safety in linking to a link? Just because it's one degree farther away from what the BT site does wouldn't mean that someone couldn't get you on some contributing charge.

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Literally speaking, you're correct...if they're hosting the whole file themselves. But what's not clear to me from reading the TD post or some of the linked articles is whether whole tracks were being posted or just snippets. Discounting the issue of who was hosting the files, if the bloggers were just using short snippets of the song, then this should fall under fair use and they shouldn't need the same licenses required to play the full song.

"we are based in the US, the content you are complaining about is hosted on US servers, we abide by US law, and unless you follow the DMCA's rules for an official takedown notice, we will not be taking down the content."

The problem with the suggested response is that Google is an international company and there should be lots of jurisdictions where it is vulnerable. See the current case about Italy prosecuting Google execs based in Italy for YouTube content, content which was taken down almost immediately upon notification.

Also, while a US-based blogger may have been given the tracks in an authorized manner, I'll bet that the authorization does not extend beyond North America, while the blog's reach is global. Even if the band gave Blogger Joe a track, I bet the regional licensing means that the track is only authorized to be distributed within the blogger's home market. The blog probably reaches lots of territories where the track, even if supplied by the band or its US label, is not authorized for distribution, and where the blog hoster (Google in this case) could be sued.

(This is fiendishly brilliant on the part of the IFPI. It does reinforce my oft-stated conviction that the future of music is all pirate, all criminal, all the time.)

Conversely, for music bloggers who move to a US-only hosting operation, it might be that at least the hosts & bloggers will only have to respond to DMCA-conforming notices, which at least will specify what files are being complained about.

Evil

Short of the actual specific issue at hand, The bigger picture is the reaction from Google. The fact that they knee jerk reacted enough to just outright delete the blogs, stands as an example of "Doing Evil from the company that does no evil. It's disconcerting to say the least. And what is seen as a mandatory situation by the ISP, is really just Google dropping the ball!

Don't host music, roll your own CMS.

I've been running a music blog for over a decade. I grumbled when other sites leapfrogged my traffic by posting MP3s, but after P2P got big, they died off, and my site's still running. Want to link to music on your blog? Work within your means. Post it on YouTube if you have to. Whenever I post about an album or song I like, I link to Amazon and iTunes - I know that if people want to download it elsewhere, they can find it almost as quickly as I could link to the torrent myself.

Re: Re: Re: Re:

However, fair use is only available as a defense. Fair use doesn't come into play until copyright infringement occurs.

Logically, if there's no copyright infringement, there's no need for a defense of fair use.

However, aside from the special case where copying constitutes a violation of privacy, everyone has a right to copy as part of their natural right to liberty. That liberty was derogated to grant an unjust monopoly for the benefit of printers in the 18th century.

Re:

What if you block download capability?

What if you post mp3's that you bought to your blog and make it so they cannot be downloaded? So they are only played. That is what I do, but am concerned if it is illegal. I figured that is was fine since its not actual distribution..

Re: Redundant

WTH Are You Talking About, If It Wasn't For blogger half of your favorite artist wouldn't have seen the light or day, i mean let's be real some blogger abuse the music pisses me off i ran a music site and promote indie artist without record deals because i thought thats the way music blogging was supposed to be but people are two busy worrying about how many view they get instead of supporting artist who actually need the promotion, why would a major artist need promo they already have street teams Ect but a artist without a deal thats who actually need it the support